Solicitor-client privilege is a principle entrenched in our legal system. It goes without saying that counsel and client must be able to communicate openly and honestly. But what happens when a client dies? What becomes of the solicitor-client privilege or more specifically, the files of the deceased individual? This issue was raised in the recent case of Allison v. McBride, 2025 ONSC 2828 (“Allison”).
In Allison, the applicant, the deceased’s spouse, commenced an application for, in part, production of the estate planning file of the deceased’s lawyer, Michael McBride (“Mr. McBride”). The deceased had an old will that predated his relationship with the applicant. In the fall of 2023, the deceased met with Mr. McBride to draft a new will – the deceased filled out a pre-will checklist where he stated that the old will was null and void. The deceased also spoke to other individuals about his estate plans. In the summer of 2023, the deceased wrote to the applicant that his new will would be ready in three weeks. The deceased also told his sister that he intended to leave his house to the applicant. Prior to his death, the deceased met with Mr. McBride several times. In November 2023, the Deceased executed new powers of attorney naming the applicant as his attorney for property and personal care. The deceased met with Mr. McBride again in December 2023. On December 31, 2023, the deceased was admitted to hospital. He died three weeks later.
The applicant sought production of the deceased’s lawyer’s files in the hopes of finding evidence of a document or a series of documents expressing the deceased’s fixed and final testamentary intentions. This fixed and final testamentary intention, the applicant hoped, would rise to a degree to be recognized as a will under section 21.1 of the Succession Law Reform Act (the “SLRA”) (this is the recently enacted substantial compliance provision which enables courts to find a document to be a valid will even though it does not comply with the formalities of execution; in other words, a separate blog topic in and of itself, best left for another day).
Justice Myers commented, “where efforts are made to review the deceased person’s lawyers’ files to ascertain the client’s true intentions as expressed in his or her will or testamentary documents, the quest is excepted from lawyer client privilege.” His Honour cited the Supreme Court of Canada decision in Geffen v Goodman Estate, 1991 CanLII 69 (SCC), and summarized the conclusion in that case. Namely, “that where a deceased person has expressed an intention unclearly (or perhaps without capacity or while under the undue influence of another) it can be assumed that the deceased person would want everyone to know what his or her true intentions were. In such cases, privilege is waived because the deceased has himself or herself released from the confidential lawyer client relationship a document to try to express his or her intention.”
However, Justice Myers found that this “wills exception” cannot be applied to a case where a possible beneficiary wants to invade the confidential sphere of the relationship between the deceased and his or her lawyer to establish a will under section 21.1 of the SLRA. Justice Myers noted, “While the limits of the reach of s. 21.1 have yet to be set definitively, case law has generally found that to qualify for recognition under s. 21.1, a document must set out the testamentary intention of the deceased in a “fixed” and a “final” way like a will.” His Honour then aptly added, “I do not know if s. 21.1 is intended to have judges decide when someone who sat with a lawyer but did not sign a will should be taken to have intended that an unsigned draft is to be given effect.”
Moreover, Justice Myers referred to Neuberger v. York, 2016 ONCA 191 (CanLII) at para. 88 and Johnson v. Johnson, 2022 ONCA 682 (CanLII) at para. 16 and reiterated that a challenger must meet a minimum evidentiary threshold to justify putting the estate and the beneficiaries through the costs of the legal process, which would include invasion of the deceased’s privilege.
In sum, Justice Myers held, “In this type of case, both privilege and risk of abuse are concerns. I am referring to cases where someone who wants to see deceased person’s lawyer’s file and it may be someone who is on the broadest of fishing expeditions to hunt for documents that might possibly form a basis for an argument under s. 21.1 of the SLRA.” While Justice Myers was not concerned about a risk of abuse on the facts of Allison, His Honour found that the problem with looking at the lawyer’s files before the deceased has expressed his or her testamentary intention in a will, is that it necessarily invades the confidential lawyer client relationship in a manner that cannot be presumed to have been desired by the deceased.
The lawyer’s file may provide answers regarding why the deceased did not sign a will or whether there was any fixed and final intention; however, such conclusions would be speculative as it cannot be ascertained whether the evidence would reflect the true final intention of the deceased. Unlike Geffen – which concluded that the deceased’s intention to create an express trust would merit disclosure of the solicitor’s file – the same conclusion cannot be drawn regarding an unsigned will. Justice Myers found that in the absence of a signed will, Mr. McBride’s file could not be disclosed.
While draft wills may provide insight into the testator’s intentions, they remain subject to revisions and cannot be a source of certainty in determining fixed and final intentions. As Justice Myers concluded, there is certainty in a lawyer’s duty to assiduously protect client privilege unless or until it is waived by someone with due authority, or a Court determines that privilege does not apply.
